Sacramento, California

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New year. New resolutions. New custody/visitation arrangement?

On behalf of Bartholomew & Wasznicky LLP posted in Child Custody on Friday, January 5, 2018.

The beginning of a new year is upon us. It is a time for reflection and review, in which many people stop to think about what is or, more accurately, what isn't working in their lives. Then, they make a promise to change it.

New Year's resolutions focus on important things in life such as health, finances and family. Children top the list of importance. You may think about how they have grown, how their unique personalities have developed and how those wonderful moments before adulthood are fleeting.

Your children may have inspired your resolution this year. It may have been small, like "I resolve to update the frames with photos that aren't two years old." It may have been big, like "I resolve to get out and be active when it is my turn with the kids."

When thinking about how your children have grown and changed, have you thought about whether your custody and visitation arrangement still works?

Custody arrangements are not set in stone

California Family Code 3022 states that "The court may, during the pendency of a proceeding or at any time thereafter, make an order for the custody of a child during minority that seems necessary or proper."

You have two options or paths to modifying the agreement "any time thereafter." Your options are to:

Make changes on your own (with court approval): When you and your spouse agree on the changes, you can submit a new written agreement to the court for approval. Even if not submitted to the court it is important that you put your agreements in writing so both of you remember what was agreed upon. DO NOT make any verbal agreements and rely on them - they are not legally enforceable and you have no record of your agreement.

Request a court hearing: You may have reason to modify the order without agreement from the other spouse. In this case, you need to request a hearing to go in front of a judge. If you do, in California, you will be referred to mandatory child custody recommending counseling.

What modifications can you make?

You have a court-ordered and court-enforceable custody and visitation agreement. You likely spent significant time during the process wondering and even worrying over the terms, making sure they made sense for your children and your life - at the time.

Since you signed the agreement, much has changed.

Have your children started school?

Have they picked up a new sport?

Have they joined new clubs?

Can they drive now?

Are they no longer in daycare?

Are they spending more time with their friends?

Have you started a new job?

Have you quit working?

Have your working hours changed?

Have you gotten remarried?

Do you want to move?

Do you have concerns that the other parent isn't properly caring for the child?

Has the other parent put the children in harms' way?

Most of the questions above refer to theoretical or practical adjustments. We are talking about the amount of time that you were allotted under the agreement or the schedule in the agreement. For instance, does the schedule in the agreement get in the way of you being able to spend the time granted?

The fact that the law allows the court freedom to make orders that "seem necessary or proper" adds much flexibility for parents. These minor changes are relatively easy to make if you and your former spouse agree. You may choose to save time and money and draft an agreement with your attorneys and submit it to the court.

The phrase "necessary and proper" does not mean that anything goes. Changes to custody such as seeking primary or sole custody when you have joint custody are not as simple.

The short story: You can make changes, but you want to consult with your attorney as to the details. You want to make sure you have chosen both the right path for your family as well as "crossed all of your t's and dotted all of your i's."

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